Wilcox v. American Tel. & Tel. Co.

• Decision Date: 06 October 1903
• Citation: 176 N.Y. 115,68 N.E. 153
• Court: New York Court of Appeals Court of Appeals
• Parties: WILCOX v. AMERICAN TELEPHONE & TELEGRAPH CO.

176 N.Y. 115

68 N.E. 153

WILCOX

v.AMERICAN TELEPHONE & TELEGRAPH CO.

Court of Appeals of New York.

Oct. 6, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Sylvester Wilcox against the American Telephone & Telegraph Company. From a judgment of the Appellate Division (76 N. Y. Supp. 1037) affirming a judgment for defendant entered on dismissal of the complaint, plaintiff appeals. Reversed.

Haight, J., dissents.

Jay K. Smith, for appellant.

Elbridge L. Adams and Melville Egleston, for respondent.

CULLEN, J.

The action was brought in ejectment to recover lands in the highway occupied by the defendant's poles, and for damages. On the trial the plaintiff proved title to the locus in quo, and the entry thereon by the defendant, and the erection of its poles. The defendant then put in evidence an instrument under seal executed by the plaintiff some years after the original entry on the highway, whereby the plaintiff, in consideration of $1, granted to the defendant the right to construct, operate, and maintain its lines over and along the plaintiff's property. The plaintiff admitted his signature to this instrument, but testified that at the time of its execution he was told by an agent of the defendant that he had trimmed one of the plaintiff's trees, and wished to pay him a dollar for it; that the agent told him the paper was a receipt for a dollar; that he (the plaintiff) did not read the paper; that he had not his spectacles with him; and that thereupon, relying upon the statement of the agent as to its contents, he signed the paper. On this evidence the court directed a nonsuit, and the judgment entered thereon was affirmed by the Appellate Division by a divided court, Mr. Justice Spring writing for reversal.

The ground on which the learned trial judge disposed of the case, as appears in the opinion rendered by him upon denying the motion for new trial, was that the negligence of the plaintiff in failing to read the paper which he signed precluded him from attacking its validity. We think no such rule of law prevails in this state, though there may be dicta in the text-books and decisions in other jurisdictions to that effect. It was expressly repudiated by this court in Albany City Savings Institution v. Burdick, 87 N. Y. 40, where Judge Earl said: ‘It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded, when he demands relief, that he ought not to have believed or trusted him. Where one sues another for negligence, his own negligence contributing to the injury will constitute a defense to the action; but where one sues another for a positive, willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief.’ See, also, Welles v. Yates, 44 N. Y. 525;Smith v. Smith, 134 N. Y. 62, 31 N. E. 258,30 Am. St. Rep. 617. It is true that, in the opinion delivered in the Smith Case, Judge Landon refers to the relations of confidence between the parties, but only as affecting the credibility of the plaintiff's story that she executed the instrument relying on the defendant's statements as to its contents. The decision did not proceed on any ground of trust relations between the parties. On the contrary, the learned judge said: ‘The learned counsel for the defendant cites numerous cases, mostly from other states, to support his contention that plaintiffs' negligence in not reading the deed defeats...